Constructive Contempt: A Post-Mortem

TL;DR: The summary power of courts over contemptuous publications was curtailed by the First Amendment and later by the Fourteenth. as discussed by the authors argued that the power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for a criminal libel, is not offensive either to the First or to the Fourth Amendment.

Abstract: Pr HE expansion of the Fourteenth Amendment in contravention of historic conceptions has become so commonplace' that it is doubtless naive to confess astonishment at the latest extension of due process. One hundred and fifty years after the adoption of the Bill of Rights we learn in Bridges v. CaliforniaF that the long-recognized summary power of courts over contemptuous publications was curtailed by the First Amendment and later by the Fourteenth. It is remarkable certainly that Mr. justice Black, who not long ago amazed the profession by urging that corporations are historically outside the protection now afforded them by due process, 3 should be the instrument of this extension. And it is little less remarkable to find Mr. justice Frankfurter dissenting,4 in the light of his biting repudiation of the power in 1924. His opinion now posits that the summary power over contemptuous publications, brushed aside as historically "dubious" by Mr. justice Black,6 is in fact "deeply rooted" in the common law,7 and further, that the "power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for a criminal libel, is not offensive either to the First or to the Fourteenth Amendments ..... "8 It is this position which is to be elaborated in this article. If it is true, however, that the Fourteenth Amendment does not cut across the contempt power, then it seems to follow that a summary commitment for contemptuous publications, absent other considerations of